Davis Brown Employment and Labor Law Blog

It's Not What You Say, It's How You Say It: The NLRB and Employee Manuals - April 3, 2015

An employee manual can be your best friend or your worst nightmare in litigation. A well-written manual can provide clarity, consistency and enhance employee communication.A poor policy can rise up like a late night movie monster and send you running for cover.Alternatively, those great, but unenforced policies can be wonderful for plaintiff’s counsel as she uses a laser pointer on the big screen to point out every inconsistency or missed opportunity for “fairness” to the jury.

Most employers focus on the Equal Employment Opportunity Commission (EEOC) or Iowa Civil Rights Commission when thinking about policies.Will this pass EEOC muster?Did I pick up the mandatory 8-week pregnancy leave under Iowa Code 216?What about Veteran’s Day?Sometimes forgotten in the mad crush to meet multiple regulatory demands is the role of the National Labor Relations Board (NLRB) and Section 7.To further complicate the matter the NLRB and EEOC don’t appear to hang out together much, no summer block parties, and don’t always like the same language:

Section 7 of the National Labor Relations Act protects “concerted activity,” the employee’s right to organize a union or protest employee treatment.This applies regardless of whether the company has a union in place.Free flowing information is deemed critical by the NLRB to the right to organize and impediments to discussion are viewed unfavorably.

General Counsel for the NLRB, to remind you of its interest in manuals, issued a memo on March 18, 2015 addressing these issues.Broken down into multiple categories including confidentiality, employee conduct, social media, use of cameras, and trademark, the memo details a wide array of acceptable and unacceptable language.The NLRB makes it clear that it looks at the context of language and what surrounds the policy in making its determination of acceptability.The NLRB also looks to the industry at issue as rules about leaving patients unattended in healthcare settings rest on a different foundation than more general “no walk out” policies.Certain rules, like you may not leave the floor, might be more acceptable for safety sensitive functions than other types of jobs, but it all depends on context.

In policies employers may not ban discussions of salaries, wages, or benefits.Employers may not require confidentiality of investigations or prohibit an employee from posting “My boss is a jerk and so are my co-workers.” on every social media site available.Policies of that type could serve to a chill concerted activity so are deemed non-compliant.The March NLRB memo goes so far as to state that policies against things like false statements are not allowed unless they are “maliciously false” as statements perceived to be false may be made by employees in the heat of an organizing discussion.Employees can also be rude and inappropriate but can’t engage in harassment, and can be required to be professional.

What about, my boss is a jerk and we make a terrible product?As defined under the NLRB rules, the employee can say that you are a jerk but the NLRB reiterates its current position that “The act does not protect employee conduct aimed at disparaging an employer’s product, as opposed to conduct critical of an employer’s labor policies or working conditions.”

Other sections relate to limiting use of trademarks to “fair use” rather than prohibiting all use without giving any clear idea of how to explain the sometimes complex and highly litigated concept of “fair use” to employees.

Here are our takeaways:

Look at context and construction.How does this policy fit together as a whole?Are you banning cell phones use while working, pictures that would violate HIPAA, or are you just entirely banning cell phones?Be prepared to provide the underlying business case as to why a rule exists. Be prepared to show that you didn’t intend to impede concerted activity.

Avoid the obvious traps.Do not say bad things about the company, do not criticize or gossip about the company or employees, do not discuss your discipline.Those are all clearly unacceptable to the NLRB.Avoid the easy red flags that draw scrutiny to the manual as a whole.

Think about specifics.How do I want this policy used?What are my goals as the employer?Can I include examples of the most common prohibited conduct?A policy that states employees may not provide third parties information about co-employees is vastly different than employees may not disclose protected information about co-employees such as social security numbers, FMLA or ADA information.

Consider savings language.Tell the employee directly and specifically this policy does not prohibit concerted activity.For example “Employees may not discuss confidential or proprietary company information such as formulas, compilations or other trade secrets.Confidential information does not include wages, benefits, conditions of work or items required to be reported by law.”

Balance your responsibilities.What makes sense for the EEOC, such as a policy that employees may not harass or annoy co-employees might not meet NLRB standards.This can be a tough balance, and employers need to focus on employee understanding, the type of behavior they are trying to prohibit, and the risks or benefits associated with any specific language.

Use commonsense in enforcement. Most employee issues are usually muddled with some “I hate my boss” mixed in with other performance issues. As an employer you need to dispassionately weigh the various issues when deciding on discipline, while watching the liability sinkholes.